United States v. Kokinda (1990)

In 1990, the Supreme Court upheld a federal regulation that prohibited solicitation on post office property, including the sidewalks outside. In this photo, a man enters a post office to mail a letter in Worthington, Ohio. (AP Photo/Kantele Franko, used with permission from The Associated Press.)

In United States v. Kokinda, 497 U.S. 720 (1990), the Supreme Court upheld a federal regulation prohibiting solicitation on post office property, including the sidewalk outside post office buildings. The Court concluded that the protections of the First Amendment were not breeched as the ban on solicitation was reasonable and did not discriminate based on viewpoint.

Two volunteers for the National Democratic Policy Committee, Marsha B. Kokinda and Kevin E. Pearl, set up a table outside the post office in Bowie, Maryland, to solicit contributions and sell materials. They were arrested after refusing to leave the premises and convicted by a magistrate of violating the anti-solicitation regulation.

A federal district court upheld the convictions, reasoning that the postal sidewalk was a nonpublic forum and that the solicitation ban was reasonable. A divided panel of the Fourth Circuit Court of Appeals reversed on First Amendment grounds. The panel majority determined that a postal sidewalk is a traditional public forum and discounted the government’s interests in the solicitation ban.

O’Connor opined that the ban was reasonable, noting that some form of solicitation ban had been in place since at least 1958 and that solicitation is “inherently disruptive” of postal service business. Kokinda and Pearl had argued that the ban was unreasonable because the government allowed other forms of speech on post office property. O’Connor countered that solicitation is an especially intrusive form of free speech.

Four justices dissented, arguing that postal sidewalk was a type of public forum

Justice William J. Brennan Jr., joined by three other justices, dissented, finding that the postal sidewalk was either a traditional public forum or a limited public forum — not a nonpublic forum. He questioned the plurality’s assertion that solicitation was inherently disruptive of postal business.

“The First Amendment demands that the Postal Service prohibit solicitation only when it actually threatens legitimate government interests,” he wrote. He also questioned why solicitation was treated more harshly than other forms of expression.